American Indian/Alaska Native victims of sexual violence require a safe place to live after the assault. Unfortunately, some landlords may attempt to evict victims of sexual violence from their homes for disturbing the peace or for “fostering violence” in their own homes. Luckily, there are several federal housing provisions which enable victims to have a safe place to live.
The Violence Against Women and Justice Department Reauthorization Act of 2013 (VAWA 2013), prohibits victims of domestic violence, dating violence, sexual assault, or stalking that are also the beneficiaries of certain housing programs from being denied housing or evicted based upon their status as a victim. Specifically, VAWA 2013 provides that “ [a] tenant of housing assisted under a covered housing program may not be denied . . . housing on the basis that the . . . tenant is or has been a victim of domestic violence, dating violence, sexual assault, or stalking.” Furthermore, if the victim is a beneficiary of one of VAWA 2013’s enumerated housing programs and lives with the perpetrator, the statute requires that her lease be bifurcated, or separated, between the victim and the perpetrator. Under this plan, the victim gets to remain in her home, while the perpetrator must leave. The programs specifically included in VAWA 2013’s protections are: HOPWA, Section 202, Section 811, Section 236, HOME, Section 221(d) mortgage insurance programs; the Housing Credit; Section 8 rental assistance; and various rural housing projects. Notably, VAWA 2013 does not extend to victims who reside in entirely private housing or victims that are beneficiaries of the Native American Housing Assistance and Self Determination Act of 1996’s (NAHASDA) Indian Housing Block Grant. Thus, unless the victim is a beneficiary of one of VAWA 2013’s enumerated programs or the housing that she lives in was built utilizing funds from one of VAWA 2013’s programs, she will not receive protection from VAWA. The majority of victims in Indian Country are more likely than not protected by VAWA 2013’s provisions.
Victims of sexual violence may need to move to a different home, city, state, or community in order to ensure their future safety. If the victim is a recipient of Section 8 vouchers, then this is an easy task, because the vouchers are “portable,” meaning they are accepted everywhere. If the victim resides in public housing, this is a much more daunting task.
Transfers to other public housing units are not directly addressed in federal laws or regulations. Instead, each Public Housing Authority has the discretion to decide the conditions for a transfer. These conditions for transfer are located in each, individual Public Housing Authority’s Admissions and Continued Occupancy Policy. Unfortunately, many Public Housing Authorities’ policies do not give transfer rights to sexual assault, domestic violence, dating violence or stalking victims. Further, at least one federal court has denied a domestic violence survivor the right to transfer to another public housing unit.
Victims and Indian communities are also protected by provisions located in the 2005 iteration of the Violence Against Women Act, because VAWA 2005 prohibits sex offenders – those who have lifetime registration requirements under the Sex Offender Registration and Notification Act – from residing in public housing or receiving federal housing assistance. Unfortunately, because of an oversight in HUD’s drafting of the relevant federal regulations, there is no process for kicking out perpetrators residing in public housing or denying them housing assistance benefits if perpetrators are already receiving them. Further, it seems that Congress did not address this oversight in VAWA 2013.
Victims receiving public assistance, living in Indian housing, renting an apartment from a private landlord, or living in most other forms of congregational housing may also be afforded additional protection from eviction based upon the violence committed against them under the Fair Housing Act.
The Fair Housing Act prohibits discrimination based upon someone’s race, color, religion, sex, national origin, familial status, or disability. Notably, the Fair Housing Act does not apply to: apartment complexes with four or fewer units, when the owner is one of the occupants; (2) a single family home, if the owner does not own three, similar rental properties; and (3) housing run by private clubs for their members (i.e., sorority and fraternity houses). Although the Fair Housing Act does not expressly address victims of sexual assault and domestic violence, many advocates have been able to successfully prevent a survivor from being evicted based upon a “sex discrimination” argument. According to this argument, women are disproportionately subjected to sexual and domestic violence. Thus, it would be “sex discrimination” to discriminate a female survivor of sexual assault or domestic violence, because the vast majority of sexual assault and domestic violence survivors are women. Significantly, unlike the VAWA 2005 housing protections, the Fair Housing Act argument is not gender neutral. It can only be used for female victims of sexual or domestic violence.
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*National Tribal Trial College is a project of the Southwest Center for Law and Policy (www.swclap.org) This project is supported by Grant No. 2017-SA-AX-K001, awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.